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the second floor and it fell onto someone walking underneath or onto a car and <br />damaged a car down below, then that restaurant or whoever signs the agreement would <br />have to defend and indemnify the City from any claims resulting from that. She added <br />that this is exactly the same as what the City requires for outdoor dining permits on the <br />ground floor. <br />Commissioner Balch inquired if the City can revoke this permit on the second floor. <br />Ms. Harryman replied that the City could certainly do it for the first floor, but it has not <br />had this for the second floor as this is the first time this is being done. She indicated <br />that staff would look at this as it would any other Code Enforcement issue. She noted <br />that it would be a little harder to tell someone that he has to tear something down or that <br />he cannot use it, but Code Enforcement does do that from time to time. <br />Commissioner O'Connor inquired if the City would restrict the use by making the <br />business owner pull tables back away from the railing. <br />Ms. Harryman replied that this is the point she was trying to make, that there are things <br />the City could do if there were problems, such as putting up some sort of glass exterior <br />behind the railing, although it is not going to prevent anyone from tossing things over <br />the balcony. She explained that the main thing staff looks to are conditions that protect <br />the Americans with Disabilities (ADA) Act such as egress, as well as not leaving litter or <br />something slippery that would cause a hazard to pedestrians. She noted that again, <br />this refers to the lower ground because the City has never had to address a second <br />floor, but staff could certainly include issues of concern in that agreement. <br />Commissioner Nagler noted that Condition No. 17 states: "No outdoor dining is part of <br />this approval. Prior to installation of any outdoor seating or tables, the applicants and /or <br />tenant shall submit an outdoor dining permit for review and approval. Plans showing the <br />location and design of the outside dining furniture shall be included with the outdoor <br />dining application." He stated that this obviously refers to the ground floor, but the <br />condition is not floor- specific, and should the Commission approve the project, it would <br />assume that the condition applies to both stories. <br />Mr. Weinstein replied that the condition would apply to both stories. <br />Commissioner Nagler stated that in the earlier conversation, staff has been referring to <br />an outdoor dining permit applying to the ground floor when in fact the condition does not <br />specify the floor. <br />Commissioner Balch stated that he foresees the ground floor possibly now as a walking <br />path because the bollards are moveable; and there are people dining over a walkway. <br />He noted that if there were a problem on the ground floor, the City has some significant <br />teeth to make sure it is in the public's interest, and asked if the City has similar teeth for <br />the second -floor usage. He pointed out that hopefully it never happens, but the second <br />PLANNING COMMISSION MINUTES, May 13, 2015 Page 12 of 32 <br />